James Logan and Hart... v. Henry Le Mesurier, H...

VI MOORE, 116 LOGAN ‘U. LE MESURIER [1847]

of opinion that no sufficient grounds have been stated to enable them to allow the

appeal, and they, therefore, pronounce for the Protest, and dismiss the Respondent

from all further process.

[Mews’ Dig. tit. COLONY ; 111. APPEATX TO h r v a Coti~crr, ;3 Leave to Appea?. On

point (i.) as to leave to appeal (6 Xoo. P.C. 107j, cf. Crem& v. Parker; the

Asps&, 1856-57, 11 Xoo. P.C. 79 j (ii.) as to p e ~ ~ e n i ~ t ~ o n of appeal by act under

deci*ee, see Lougicmn. Y. Haj i Joosub BliuEadZna, 1851, 7 Moo. P.C. 373. See also

0. in C. of Dec. 11, 1568 (Stat. R. and 0. Rev. iv., 403) as t o appeals in inari-

time causes; Colonial Courts of Admiralty Act, 1890 (53 and 54 Vict., c. 27);

rules as to such Courts, Aug. 23, 1883 (Stat. R. and 0. Rev. i., p. 631); and list

of Courts (up to Dec. 31, 1899), as to which they have been supeiwded by rules

made by the rulemaking authorities of such Courts and confirmed by 0. in C.

under s. 7 af the Colonial Courts of Admiralty Act, 1890, in Pulling’s Index to

the Stat, E. a d O., 3rd edition (1599), p. 106. The Slave Trade Act, 1824

(5 Geo. IV., c. 113), s. 29, was repealed by the Slave Trade Consolidation Act,

15‘73 (36 and 37 Vict., e. 88) s, 30.1

[116] ON APPEAL FROM. THE PROVINCIAL COURT OF APPEALS

FOR THE PROVINCE O F LOWER CANADA.

JAMES LOGAN and HART LOGAN,-AppelZannt~; IlENRP LE MESURIER,

IIAVILBND LE MESURTER, ROIJTIX, and TiVILLIAM HENRY TILSTOP\’E,---

Responden&* [Dee. 6 and 7, lS4?].

Messrs. E. L. and Co., of ~ ~ o n t r c a l , entered into a written contract with Messrs.

L. and Co., f o r the sale of a quantity of red pine timber, then lying above the

Rapids, Ottawa Riverr: stated to consist of 1391 pieces, measuring 80,000 feet,

niore o r less, to be deIiverabIe a t a certain boom a t Quebec, on or before the

15th of June, then next, and to be paid €or by the purchasers’ pron~issory notes

of ninety days from that date, a t the rate of 9;d. per foot, m e a s ~ ~ e d off: if

the quantity turned out, more than above stated, the surplus was to be paid

for by the purchasers a t Rftd. per foot, on delivery; and i f i t fell short, the

difference was tjo be refunded by the sellers. The price of the 50,000 feet a t

the agreed rate, was paid hy Messrs. L. and Co., according to the terms of

the contract. The timber wan not delivered on the day prescribed in the

contract of sale, and when i t arrived at Quebec, and before it was measured

and delivered, the raft was broken up by a storm, whereby the greater par t

of the timber was dispersed and lost. Messrs. L. and Ca., after the storm,

collected such of the timber as could 1% saved, paid salvage for it, and applied

tho timber saved to their own use. In an action brought by l\ilessrs. L and

Co, against Messrs. W. Ti. and Co., to recover the amount paid an their pro-

missory notes, and for a breach of the contract, and for the difference between

the contract price of 9id. per foot and l04d. per foot, the market price when

the timber was to have been delivered:-

Weld by the Judicial Commit~e~, affirming the judgiiient of the Court of Appeals

in Lower Canada,-

I. That the action was maintainable.

11. That, by the terms of the contract, until the measurement and delivery of

the timber was made, the sale was not complete; and that the transfer of

the property was postponed until the measurement a t the delivery; arid that

the risk remained with the sellers.

111. That the taking possassion o f a part of the timber by Messrs. L. and Co.,

* Present : Lord Brougham, Lord Langdale, Lord Campbell, the Right Eon. Dr.

Lushington, and the Right, Won. T. Peinhrton Leigh.

628

LOGAN a. LE ~ ~ s u ~ I ~ ~ c184.71 VI NOORE, 117

after the day mentioned for the delivery thereof, in the contract, and not

a t the place, could not be considered as an acceptance of the whole; nor could

it be considered as an admission, that the property in the timber passed to

them before the storm which broke up the raft.

The old French law in force in Lower Canada, grounded on tho civil law, i s in

substance the same as the law of England, upon this point [6 Loo. P.C. 1311.

This was an action brought in the Court of King’s Bench at Montreal, in which

the present R e ~ p o n d e i i ~ 11171 sought to recover the sum of 1979 3s. 4d., which had

been paid by them to the ~ p p e l ~ a ~ t s as the price of a raft of red pine timber, sold

by the Appcllanta to the Itespondents by it writ,tw contract dated 3rd December,

1834, and which raft of timber .was wrecked and dispersed at Quebw, on tho 20th

June, 1835. The Rmpondents also claimed by the action, damages for tile 1100-

delivery of timber.

The contract was as follows:-“ Hart Logan and Go. of kTontrea1, s d , and Le

Mesurier, Routh, and Co., of the same place, buy, a qunntity of red pine timber,

the property of Thomas Durrell, of Null, L.C., but under control of the sellers, now

lying above the Bapids, near the ChaudiOre Palls, Ottowa River, arid stated by the

sard Thomas Durrell to consist of 1391 pieces, measuring 50,000 feet, more or less,

deliverable a t Quebec, on o r before the 25th of June next, and payable by the pur-

chasers’ promissory notes a t ninety days’ date from this date, a t the rate of Sad. per

foot, measured off. Should the quantity turn out inore than above stated, the

surplus to be paid for by the purchasers a t 9Qd. per foot, on delivery ; and should it

fall short, the difference to be refunded by tlie sellers. Signed in duplicate - .~ont re~l ,

3rd Dcceniber, 1834. ;Hart Logan and Co. Le Mesurier, Kouth, and Co. TO be

ddivered a t $1. B. Farlin’s booms, at Sillwy C131-e, Quebec.”

[In$] U n the 5th of December, 1834, the Respondents’ promissory notes fo r the

sum of $1979 3s. 4d., a t 90 days, were delivered to the ~ p p e l l a ~ ~ t s , in terms of the

contract.

The timber thus purchased was not delivered on the 15th crf June, l.835, the

day specified in the contract; but late in the day of the 19t.11 of June a raft floated

down to Quebec, under the charge of crne Ustrom, and arrived at the part of ilte

river nearly opposite to the appointed place for delivery,-viz., Farlln’s booms, a t

Sillery Cove, Quebec, which purported to consist of the timber so purchased. The

booms at Sillery Cove being full, the raft was, a t the instance of Farlin, removed

to a short distance from tlie spot and properly secured. In the! courue o f the

following night, before the raft was or could be received within the booms, it

was broken up and dispersed by a violent storm, wherein the greater par t of the

timber was wholly lost. After the dispersion, tlie Respondents collected all the timber

that, they were ab10 to recover, and paid salvage for it, and dressed and shipped on

their own account, what had been so saved. They also purchased other timber a t

the rate of 1 Ogd. per foot, the then market price, to fulfil certain contracts they had

made upon the pres7~mptioii that the timber would be delivered to them according to

the terms of the contract.

The Respondents afterwards brought an action in the District Court of Montreal,

to recover back from the A p ~ e l l a n ~ the above sum of ;E1919 3s. 4d., the amount of

the promissory notes, which had been paid at maturity, and also for damages, laid a t

&400, for the non-delivery of the timber according to the contract. The Appel-

lants resisted this demand, and at the same time, by incidental or cross suit, claimed

to recover [119] f rom the Respondents the residue of the price, amounting, as was

alleged, to $191 18s. 4d.

The decl~ration consisted of two counts: the first count set forth the above

contract : it then averred Payinent of the price, according to the contract, by rnuking

and delivering promissory notes of the Plaintiffs, and satisfying the same when due ;

and assigned fur breach, that the Defendants had not, on the 15th of June, or a t

any time since, delivered to the Plaintiffs, a t the booms of Farlin, a t Sillery Cove,

nor elsewhere, the said quantity of timber, or any part thereof, but? had therein

wholly made default. It was further averred, that on or about tlie 19th of June, the

timber, then being in the possmion of the Defendants, was by the force and violence

of the winds and waves wrecked, scattered, destroyed, and wholly lost, without any

629

VI MOORE, 120 LOGAN v. LE MESURIER [ 18471

default on the part of the Plaintiffs; and that the Plaintiffs were thereby not only

deprived of the above sum of S1979 3s. 4d., so paid by them as the price of the

timber and of the interest thereon, but had suffered damages to the amount of S400,

by reason of their being obliged, through the Defendants’ default, t o purchase other

timber a t a higher price, to enable them t o fulfil certain contracts which they had

entered into upon the faith of the due performance of their contract by the Defen-

dants. The second count differed from the first only, by setting forth, that the

timber was deliverable a t the city of Quebec generally, without specifying the booms

of Farlin,>and the breach was assigned in respect of tho non-delivery at the city of

Quebec. The Defendants pleaded t o the first count, First, that on the 15th of

June, 1835, they did deliver the timber a t the booms of Farlin, a t Sillery Cove, and

that the sanie was then received by the Plaintiffs. Second, that [I201 on the 19th

of June, 1835, they delivered the timber a t the booms, etc., omitting the allegation

that it was received by tlie Plaintiffs, and averred performance of their contract

generally. Third, that on the 19th of June, 1835, and before they, the Defendants,

had been placed en demeure, they delivered the timber a t the booms, etc., according

to their contract Fourth, that on the 19th of June, 1835, and before they had been

placed en demeure, they delivered the timber to Farlin, the agent of the Plaintiffs

in that behalf. Fifth, that on the 19th of June they delivered the timber a t the

booms of Farlin to the Plaintiffs, and that i t was then in the power of the Plaintiffs

to take and receive the same into the booms, but that the Plaintiffs, although

requested, neglected and refused so to do ; and that on the 20th of June, 1835, there

arose a storm of unusual violence, by which the timber was broken away from its

moorings, and was broken up, dispersed, and carried away; and the pieces com-

posing the raf t were lost, except 500 pieces, which it was averred the Plaintiffs

succeeded in saving and recovering for themselves, and which came into the hands of

the Plaintiffs, and were used and appropriated by them; that if the timber had been

received into the booms, the whole would have been saved; and that the loss was

attributable to the storm, and to the negligence of the Plaintiffs in leaving the timber

exposed, and not to any want of due care on the par t of the Defendants. Sixth,

that after the making of the promise, and before the Defendants had been placed

e n demeure, to wit on the 19th of June, 1835, the Defendants delivered the timber a t

the booms, etc., to Farlin, the agent of the Plaintiffs. That it was incumbent on

Farlin and the Plaintiffs to receive the timber into the booms, and that they were

requested [I211 to do so, but that neither Farlin nofr the Plaintiffs would receive the

timber into the booms; that on the contrary, the booms, by the act of Farlin, were so

completely filled with timber, that neither he nor the Plaintiffs could receive the

timber into the booms. That the booms could not have admitted the timber a t any

period of time between the earliest moment of the 19th of June and the latest hour

of the 20th; that, in consequence, the timber remained out of the booms; that after-

wards, and whilst it was so lying out of the booms, a storm arose, by which it was

broken away from its moorings, and dispersed, and carried away, except 500

pieces saved and appropriated as before mentioned by the Plaintiffs. That if the

timber had been received into the booms on the 19th of June, when so delivered

thereat, the pieces would have been measured off, and no par t would have been lost ;

and that but for the negligence and refusal of the Plaintiffs and Farlin, the timber

would have been measured off and saved. Seventh, that on the 19th of June, 1835,

the Defendants did deliver the timber at the booms, etc., and that they could not

deliver the sanie at an earlier day, by reason of the unusual lateness of the spring

of the year 1835. To the second count the pleas were in all respects similar, except

as to such slight variations as were rendered necessary by the difference in the state-

ment of the place where the timber was deliverable.

In addition t o these pleas, the Defendants pleaded also the following peremptory

exceptions to both counts of the declaration: First, that on the 19th of June, 1835,

and before they had been placed em demeure, they did deliver the timber to the

Plaintiffs at the booms of Farlin, and the same was then and [I221 there received by

the Plaintiffs. Second, that on the 19th of June, 1835, and before they had been

placed e n demeure, they did deliver the timber at the City of Quebec. Each of these

exceptions and peremptory exceptions concluded with an averment, that in fact the

timber contained 50,000 feet, at the least.

630

LOGAN 1). LE ~ ~ ~ ~ U R I ~ ~ [1847] VI MOORE, 123

The incidental demand (or d e c ~ a r a ~ i o ~ i ) in the cross action of the Defendants,

consisted of three counts ; the first of which, after setting forth the contract, averred

a delixery of the timber a t the boonis, etc., and that the same turned out to conta-in

58,000 feet ; and assigned for a breach, the non-payment, by the incidental Defen-

dants, of the price of the surplus 5000 feet, aniounting to ;E197 18s. 4d. The second

count, alleged a delivery on the 19th of June, before the incidental Plaintiffs were

plared cm demeure. The third count, after setting forth the contract and the

delivery on the 19th of June, before the incidental Plaintiffs were placed e n denbcupe,

and averred that tho quantity deliTered was 55,000 feet, proceeded to allege, that

after the timber had been delivered at the booms, it was allowed by the incidental

Defendants to remain outside, and insecure against accidenb of weather ; that a

storm arose, whereby it was broken away and dispersed, except 500 pieces saved and

appropriated as before; that if the timber had been received into the boonls and

secured, the nu~nber of feet contained in it could have been measured off by the

iiIc~de~ita1 Defendants, and no par t would have been tost; and concluded with a

siinilar breach as to the non-payment of the sum of S197 18s. 4d. currency, the

price of the surplus quantity above 50,000 feet, a t 9gd. per foot.

The issues were completed by general replication [1231 and answers to the

pleas and exceptions of the P l ~ i n t i ~ s , and by general pleadings to the incidental

demand, whereby the whole of the material facts averred on the one side, and on the

other, were respectively denied.

Evidence was then taken on both sides, and the cause having been heard on the

merits, the Jud~nient of the Court of King’s Bench was declared in the f o ~ l o w ~ l ~ ~

terms :-‘‘ The Court having duly de~iberated, proceeding firstly t o adjudicate upor>

the principal d 0 ~ a ~ d , and ~ o n s i d e r ~ n g that the Defendanta, incidental Plaintiffs,

bave e~tablished in evidence a good and sufficient offer and tender to niake a t rue

and legal delivery to the said Plaintiffs of a quantity of red pine timber, in con-

formity with the contract o r a ~ r e e ~ l i e i ~ t sozis seign pr&& entered into between the

parties, and dated Montreal, the 3rd day of Dwember, 1831; which offer being

refused by the Plaintiffs, incidental Defendants, the quantity of red pine timber was

~ n ~ i ~ ~ e d i a t e l y ~ t e r w a r d s dispersed, and the actual delivery of it prevented by force

~ ~ ~ i e ~ ~ ~ ~ e ~ and that the Defendants and incidental Raintiffs are not guilty of any

breach of the contract. It is adjudged that the principal demand be, and the same i s

hereby dismissed with costs to the Defendants, incidental Plaintiffs. And the Court

pioceeding to adjudge upon the incidental demand made in this cau~e, it is con-

sidered and adjudged that the incidental Plaintiffs in this cause do recover from tlie

inc~dental Defendants talle sum of &I40 10s. 5d., being the balance r e ~ a ~ n i ~ g due

upon the price and value of 53,560 feet of red pine timber, the quantity sold by the

incidental Plaiiztiffs to the incidental Defendants, under the contract or agreement

above nientio~ed, of the 3rd day of Deceniber, 1534, and of which the delivery was

as aforesaid tendered by the iccidental [I241 Raintiffs to the incidental Defendants,

and by them refused; and the same was dispersed, and the actual delivery thereof

mea$ prevenced by force ~ ~ ~ e ~ r e as aforesaid, the timber being calculated at the rate

of 9id. per foot, with interest thereon from the 1st day of December, 1835, date of

the filing of the incidenta~ demand, until actual payment, and costs of che incidenta~

demand, to which the Court condemns the ~ n c ~ d e n t ~ l Defendants.”

Froin this judgment the present Respondents appealed to the Court of Appeals

for Lower Canada, assigning error in the general form. And the appeal having

been heard, Judgment was, on the 10th day of November, 1845, pronounced by that(

Cowrt, reversing the Judgment of the Court below; the material part of which was

111 the following terms :-‘‘ This court, considering that it appears from the evidence

adduced in the cause, that on or a b u t the 19th of the month of June, at a place

called Convent Cove, near Quebec, the aforesaid quant i ty of red pine timber then

and there being in possession of the Defenda~ts, and of their agents and servants,

unnzeasured and undelivered to the ~ p ~ e l ~ a n t s ~ was, by the force and violence of the

winds and w a v q wrecked, scattered, destroyed, and lost, without any default on

the par t of them, the Appellants, whereby they were deprked of the sum of

$1979 3s. 4d., so by them pi id to the Respo$&xts, as and for the price of the

q u a n t i ~ y of red pine timber so to be delivered. and of the Iawfuf interest of that sui11

from the 6th of March, 1835, when the sanie was paid; and cons~dering, Iikewise,

631

VI MOORE, 125 LOGAN v. LE MESURIER [ 18471

that the Appellants were compelled and obliged to buy and purchase, and did buy

and purchase, other red pine timber, at a greater and higher price, to wit, a t and

[125] after the rate 10id. for each foot thereof, to enable them, the Appellants, to

fulfil and perform certain contracts and promises by them entered into and made in

the way of their business as merchants a t Quebec aforesaid, under the presumption

and belief that the Respondents would have delivered to them the quantity of red

pine timber, according to the tenor and effect of the said contract or agreement, for

the sale and delivery thereof a t Sillery Cove, near Quebec, on or before the 15th of

June, 1835. Bnd this Court, considering further that upon the sale of goods by

admensuration, which may happen to be destroyed before measurement, the loss is

cast upon the seller, that the stipulations of admeasurement and of delivery a t a

particular place, rendered the sale conditional and incomplete until the .occurrence

of those events, and that in the meantime the risk ‘ p e r i c u l m r e i wendztae ’ is not

t o be borne by the purchasers; that after the expiration of the time fixed for the

delivery, the puichaser was not bound to receive the property, the contract having

been determined by the sellers’ breach of its conditions, and that in the performance

of all commercial consracts punctuality is required, the rule of the civil law ‘ dies

mterpellat pro homine’ being strictly applicable t o them, it is, therefore, by the

Court now here considered and adjudged, and the Respondents are hereby adjudged

and condemned to pay and satisfy to the Appellants-First, the sum of 51979 3s. 4d.,

with interest thereon, from the 13th of July, 1835, the day of the service of the

judlcial demand in this cause, till paid. And secondly, the sum of 2312 OS., being

the difference in value of the quantity of 50,000 feet of red pine, between the

market-price thereof in the [126’J month of June, 1845, and the price of 98d. per

foot, being the contract price for which the Respondents were to have delivered the

quantity of red pine timber t o the Appellants, with interest on the sum of S312 10s.

from this date, till paid. And this Court hereby dismisses the demand of the Re-

spondents as incidental Plaintiffs in the Court below, reserving to them, the Respond-

ents, nevertheless, all such recourse as they legally may have and take for the value

of such quantities or parcels of the red pine timber, as may have come into their

hands and possession, belonging to the Respondents, subsequent to the 19th of June,

1835. And lastly, this Court doth adjudge and condemn the Respondents to pay co

the Appellants as well the costs of the suit c r action as of the incidental demand in

the Court below, together with the costs of the Appeal. It is ordered, that the record

and proceedings in this cause be remitted to the Court of Queen’s Bench for the

District of Montreal.”

From this Judgment the present Appeal to Her Majesty in Council was brought.

Sir Frederick Thesiger, Q.C., Mr. Greenwood, Q.C., and Mr. Benson, for the

Appellants.-This contract of sale was an absolute, and not a conditional contract.-

[Lord Campbell : What law is to govern this case ; the old French law, in force in

Lower Canada, or the law of England?]-A conflict of laws cannot arise in this case,

as the old French law, in force in Lower Canada, and the law of England, upon this

question, are the same. We submit tha t the property vested, on the execution of the

contract, in the purchasers. Sothing further vas requisite to be done by the

vendors; and, therefore, any loss which [I271 might occur subsequently was a t the

risk of the purchasers. 1 Pothier, Tr. du Cont. et de Vent., Par t IT., pp. 579, 584

It was the sale of a certain thing, assunied to contain a certain quantity. To the

samt effect are the English authorities. Thus in Tarliag v. Baster (6 B. and Cr. 365),

Mr. Justice Holroyd says, ‘‘ In the case of a sale of goods, if anything remains to be

done on the part of the seller, as between him and the buyer, before the thing pur-

chased is to be delivered, the property in the goods immediately passes to the buyer,

and that in the price t o the seller.” And this case has been followed by Swanwick

v. Sotherm (9 Ad. and Ell. S95), Zagury v. Fume11 (2 Camp. 240), Hamom v, &!eyer

(6 East, 614), Martindale v. Smi th (1 Q.B. Rep. 389), Dis0.n v. Pates (5 B. and Ad.

313, 343), Alexander v. Gardner (1 Bing. N.C. 671), Gillett v. Hill (2 Cro. and Mee.

530), Clarke v. Spence ( 4 Ad. and Ell. 448).-Lord Brougham : the case of Simmona

1- S w i f t (5 B. and Cr. S57), is an authority against you. There it was held that

where the quantity had to he ascertained before the price could be fixed, the contract

mas not complete until delivery. It is on all fours with this case.]-That case is

distinguishable from the present. The judgment there proceeded upon the circum-

632

LOGAN v. LE MESURIER [1847] VI MOORE, 128

stance that the vendor was to weigh the goods. Here is a sale of a specific article,

assumed to contain a certain quantity, which is to regulate the price. If any step

was to be taken to ascertain the price, we admit that the contract is not complete,

f%nzmons v. swift [5 B. and C. 8571.-[Lord Campbell : How can you show the exact

amount of the price? The timber was to be paid for a t the rate of 94d. per [128]

foot measured off.]-That might refer to a former measurement ; we admit that there

was to be a future measurement. The Appellants, after execution of the contract,

and payment of the stipulated price, became mere bailees and agents of the Re-

spondents, and were only bound to use the same diligence, and to take the same care

of the timber as they would have done if the property had been their own, Fragano

v. Long (4 B. and Cr. 219), Kent’s Conuns., vol. ii. 491, Smith’s Mercantile Law, p.

399 (2nd edit.) : they were not responsible f o r any loss which might arise, without

wilful default of their own, and which would have arisen from the act of God, and

vis major. 3

By the teriiis of the contract of sale, the gocds were to be delivered at Farlin’s

boom, on or before the 15th of June. Supposing the delivery, a t that. time, was a

condition precedent, and that the delivery did cot take place till the 19th, instead of

tlre 15th of June, for there was a delivery and acceptance by Farlin, who must be

treated as the authorised agent of the purchasers; still, if time was a condition

precedent, if there was a breach of the contract in that respect; the breach was

waived, by the acceptance, by the purchasers, of the remainder of the timber, after

the breaking up of the raft. Wothan v. East Zndia Compwuy (1 Term Rep. 638).

Ghaholm TT. Ways ( 2 Man. and Gr. 257). Bormnanm v. Tooke (1 Camp. 377). Have-

lock v. Geddes (10 East. 555). Clipsham v.

Vertue (5 Q.B. Rep. 265). Alexander v. Gardmr (1 Bing. N.C. 671). Porter v. Shep-

hard (6 Term Rep. 665). Z’orduge [I291 v. Cole (1 Saund. 320). Abbott on “ Ship-

ping,’’ p. 251. (2nd Edit.). The purchasers, after the loss, treated the property as

their own. It is clear that the Respondents took a great part of the timber under the

contract.-[Lord Brougham : The Respondents say that the contiact was a t an end,

and that the timber came to their hands irrespective of-such contract.]-A party

c;.unot repudiate part of a contract. The vendors might have their cross-action

for damages for non-performance of the entire contract. Dnvidson v. Gwynne

(12 East. 381), iWarshn71 v. Lynn (Palm. 397), Constable v. Cloberie (6 Mee. and W.

109). Even if the delivery, on the 19th, instead of the 15th of June, was not suf-

ficiently excused, the Appellants, though liable to damages, i f sustained by the pur-

chasers, by reason of the delay, were not compellable to refund the price of the

timber; but the damage which they have sustained was not caused by the non-

delivery on the 15th of June, but by the Respondents not having taken proper

measures to have Farlin’s booms ready, when the timber was delivered and accepted

by them. The judgment of the Court of Appeals is, a t all events, erroneous, in not

having allowed, in reduction of damages, the 7-alue of the timber, of which the

Respondents had obtained possession.

Mr. Crowder, Q.C., and Mr. Martin, Q.C., for the Respondents.-The cause of

action is f o r the non-delivery, o i l the 15th of June, according to the terms of the

contract. The only answer that could be made to that, was accord and Ratisfaction,

or release: waiver could have nothing to do with it. The sale in question, x-as a

sale by [I301 admeasurement, and not per uversionem; consequently, the risk of the

IOSS by casus fortuitus, or vis major, remained with the seller, until either admeasure-

ment had taken place, or the purchaser was in default. Where the thing sold is

not ascertained, or the price is not ascertained, the risk remains with the vendor.

Pothier, Tr. du Cont. de Vent., Pt. IV., B. 308, et seg. Vinnius (Arnoldus), lib. iii.,

tit. 24 (Edit. Amst. 1655. 4to.). Voet,

lib. 18., tit. 5 , n. 4. “ De pemculo et Com.” And the English authorities, Simmom

v. Sm.ft (5 B. and Gr. 857), and 9wcxnwdck v. iS’othem, [9 Ad. and E. 8951, are con-

sistent with tha principles of the Civil Law. The delivery and the measurement had

not taken place a t the time of the loss, which was occasioned without any default on

the part of the purchasers. But even if the sale had been such as to transfer to the

purchasers the risk, intermediate between the sale and tlie delivery, the sellers not

having delivered, or being ready t o deliver, a t the time and place appointed in the

contract, the risk, from the time of such default, reverted to them; the rule of the

633

Ritehie v. Atkiason (10 East. 235).

2 Burge’s ‘‘ Conims. on Confl. of Laws,” 535.

VI MOORE, 131 LOGAN v. LE MESURIER [1847]

civil law, “dies interpellat pro J~on~nzc,” or, that the lapse of the time specified,

alone, without any interpellation, is sufficient to place the party in default, is

applicable, and that the sellers not having delivered the timber on or before the

16th of June, the time specified in the coiitract, were en demeure accordingly. There

is nothing to excuse the breach: the one alleged, namely, the Iatenees of the season,

is no excuse. This was a breach, which nothing but a n-aiver on the part of the pur-

chasers could satisfy. To enable the sellers to take the benefit of the waiver, they

ii iust show that Farlin was the purchasers’ agent for receiving the timber on the

19th of June. This was not so, therefore the whole loss [I311 falls on the Appellants,

and the Respondents had a right to succeed in their action. Pothier, Tr. du Cont. de

Vent., Pt. IV., n. 312. The case of Szuanwick v. S o t h e m (9 Ad. and Ell. 895), relied

on by the Appellants, is against this proposition, but its authority is impeached, and

not to be supported; there is some doubt whether the facts of the case correspond

with the judgment ; and the taking possession of the timber saved, after the raft was

Lroken up, was riot a waiver, it only created a new contract. The Appellants set up

a right to the value of the timber, but seek to have it allowed in reduction of damages.

But if the contract has not been performed, an action on the contract will iiot lie,

though sustainable for the value. They could not have both remedies by an action

of damages and an action upon the new contract. Story “ On Bailments,” p. 4611.

Mondel v. Steel (8 Mee and Wel. 858). No injustice can be sustained by carrying

out the judgment of the Court below in holding, that the Appellants are entitled to

recover the value of the timber salved, and the Respondents are entitled to recover

Giie amount of the promissory notes and the damage for non-delivery.

Lord Brougham (13th Dec. 1837).-In this case, there was no contest between the

parties, as to the law ndiich should govern the decision of the question, because it

appears, when the matter is duly considered, that the old French Law, administered

by the Courts of the ProxTince of Lower Canada, and grounded on the Civil Law, is,

ir, substance, the same with our own, touching the subject-matter of the case iiow

before us. The application of that law t o the facts of this case, reiliairis alone to be

considered.

[I321 We have here, not an agreement to sell, but a contract of sale, with certain

terms adjected; and the nmin question is, whether or not, that contract was coiii-

pleted, and passed the property to the buyer, before the accident happened which

partially destroyed the subj ect-matter of the contract.

Now, to constitute a sale which shall immediately pass the property, i t is neces-

sary that the thing sold should be certain, should be ascertained in the first instance,

and that there should be a price, either ascertained or ascertainable. But the parties

may buy or sell a given thing, nothing remaining to be done for ascertaining the

specific thing itself, but the price to be afterwards ascertained in the manner fixed

by the contract of sale, or upon a guantum valeat : or, they may agree that the sale

shall be complete, and the property pass in the specific thing, chattel, or other goods,

although the delivery of possession is postponed, and although something shall remain

l o be done by the seller before the delivery; or they may agree, that nothing remains

to be done f o r ascertaining the thing sold; yet: that the sale shall not be complete,

and the property shall not pass, before something is done to ascertain the amount

of the price. The question must alvays be, what mas the intention of the parties

in this respect ; and that is, of course, to be collected from the terms of the contract.

If those terms do not show an intention of immediately passing the property until

something is done by the seller, before delivery of possession, then the sale cannot

be deemed perfected, and the property does not pass until that thing is done. It is

unnecessary to go through the cases relating to these positions. None of them will

be found at all to inipugii them. Indeed, [I331 taken together, they clearly support

it, as does the old French, and the Civil Law.

In applying this doctrine to the contract before us, there may be some doubt

raised by the peculiarity of the ternis, inasmuch as, on the one hand, a certaiii

chattel is sold, and a price fixed in reference to an assumed measurement, the state-

ment of which is parcel of the contract, and the price is to be paid immediately,

with a reserved right for the one party to recover part of that price, and for the

other party to receive niore, in case that assumption shall prove to have been

634

LOGAN 21. LE ~ ~ S ~ ~ I E ~ [1847] VI HOORE, 134

incorr c t ; while, on the other hand, the seller is to retain possession, to carry the

chattel to a rertain place, there to deliver it a t a certain time, and to niake the

~ n e a s u r e n ~ e ~ t before the delivery. But, taking the whole of these terms together,

it appears to us, that, until tfie measure~r~ent and delivery was made, the sale was

not coniplet., there being nothing in the terms to show an intention that the pro-

perty should pass before the ~ ~ e a s u r e ~ n e n t : but, on the contrary, the intention rather

appearing to be, that the transfer should be postponed until the measurement a t

the delivery.

The timber is fulIy specified by the description, and the place where it lay; it

i s further said to be the property of Durrell, but under the control of the sellers.

Durrell’s statement of the quantity is given, that it measured ‘‘ 50,000 feet, iiiore

or less;” it is t o be delivered on or before a certain day, the 15th of Junc, a t

Farlin’s Boorti, Quebec, and the paymer~t, to be made by a proni~ssory nom imme-

diately, is to be at the rate of 9kd. per foot, measured off, that i s , when measured

off; and, as the seller is to carry and to deliver it at, Quebec, he is the party to

measure it there, a t or before E1341 the delivery. Then, should the ~ i ~ ~ ~ i t i t y be

found, when measured, to exceed the estimate, an additional sum i s to be given;

if it fall sbort, a part of the sum paid is to be returned. Taking the whole of the

terms together, it appears to us, that the first part of tlie contract, selling an ascer-

tairied chattel for an ascertainable SUM, (and which, i f it stood alone, would pass

the property,) actually paid upon an h y p o t ~ ~ ~ s ~ s or estimate, is controlled by the

subsequent part of the contract providing for the possession, carriage, ineasureIiient,

and delivery, all by the seller, with the readjustment of the price by repaymeut or

increase of the sum paid upon estimate, in the event of the estimate proving

erroneous, and that so the property did not pass before the i n e a s u r e ~ e ~ ~ t , and

delivery at Quebec. i f , again, it be said that the ineasur~n~ent was not to be made

by the seller, but in the manner alleged by the ~ppel lants , this can make no differ-

ence in the result of the ag ree~~en t , because in what way soever, and by ~ ~ a t ~ o e v e r

mode, the ~neasurenient was to be after the delivery a t Quebec. Instead of a

sale, then, which the first part of the contract t r d d import, i f standing alone, it

is only a contract to deliver a t a certain place and time, and the property did not

pass before that delivery.

That the timber was not delivered at the place prescribed by the contract, we

take, upon considering the whole of the widence, to be suBciently clear, and that

it was not delirered anywhere a t the time prescribed is undisputed. The taking

possession of a part of the timber after the day. not a t the place, and when the

storm had broken up the raft, cannot of course be considered as a delivery, nor can

i t be con-[l3~]-s~dered as an acceptance of the whole, nor as showing by the party’s

a d ~ i s s i o ~ i , that the property passed before the accident, when the terms of the con-

tract show that it did not pass.

It follows, from the whole, that the action is niaintai~able for recovery of the

price paid, and for the difference between the contract price of 9id. per foot, and

10+d., the market price at the time when the tiniber ought to have been delivered.

But from the sum of 21979 3s. 4d. and the snni of ;E312 10s. must be deducted the

value of the timber taken possession of by the ~ ~ e s p o ~ c ~ e n t ~ at 103,d. per foot, less the

sums paid by them for salvage and other charges. With respect to the quantity

which they might have recebed on demand, it further sum may be deducted if the

quantity can be agreed on; and if no such further deduction be made, then the

property in that timber remains with the seller. Ortr desire is, that the parties

should come to an understanding upou these deductions, in order that tlie S U ~ S may

be inserted in the Judgment, and all further proceedings in the Province beconie

ii~i~~ecessary.

The following report was made by lheir Lordships, nliich was duly ~ o ~ i ~ r ~ e d

by an Order in Council, bearing date the 11th of February, 184s :-

“The Lords of the Coiiiniittee, in obedience to your Xlajesty’s said Order of

Reference, have taken the said appeal into consideration, and having heard Counsel

on both sides, their Lordships do this day agree ~ ~ ~ ~ n l b l y to report to your &fajesty

as their opinion, tliat the said Judgr~~ent of the said Court of Appeals rendered in

thc said cause, or action, on the 10th of Sovember, [13t;] 1845, ought to be varied,

by reducing the anioant of tfie said sums of $ L919 3s, 4d.. and $31 2 IOs., ~ a ~ ~ i r ~ ~

635

VI MOORE, 137 MITCHELL ‘u. THOMAS [1847];

together $2291 13s. 4d., thereby adjudged and ordered t o be paid by the said

Appellant, James Logan, to the said Respondents, Henry Le Mesurier Haviland,

Le Mesurier, Routh, and William Henry Tilstone, to the sum of &E1200 sterling,

to be paid with lawful interest thereon, according to the law of Canada, from the

6th day of March, 1534, until the time of payment; and their Lordships are further

of opinion, that such part of the said Judgment of the Court of Appeal as relates

to the costs of the said suit or action ought to be affirmed, and that each party do

pay their own costs in this appeal to your Majesty in Council.”

[Mews’ Dig. tit. COLONY, 11. PARTICULAR COLONIES, 4. Britzsk il’orth America;

tit. SALE OF GOODS, C. WHEN PROPERTY PASSES, 7. Ascertaining quantity

or quulity. See East India Co. v. Oditchum Paul, 1849,

7 Moo. P.C. 103 ; Acranzun v. Morrice, 1849, 8 C.B. 449 ; Boswell v. Kilbum,

1562, 15 Moo. P.C. 309; Seath v. Moore, 1886, 11 A.C. 3’10; Sale of Goods Act

1893 (56 and 57 Vict., c. 71), s. 18, rule 3.1

S.C. 11 Jur. 1091.

E1371 ON APPEAL FROM THE PREROGATIVE COURT OF CANTERBURY.

WILLL4M MITCHELL,-Appellant ; ELIZABETH THOMAS,-l?esponde?zt *

[Dec. 10, 184’11.

Where a testamentary disposition is propounded under circumstances of SUS-

picion ; as where the party propounding it was the drawer, and was benefitted

by it, and it was executed a t a time when the Testator was of doubtful

capacity ; without any evidence of instructions previously given, or know-

ledge of its contents ; the party propounding it must prove that the Testator

knew and approved of the contents of the instrument [6 Moo. P.C. 1501.

A Codicil, which varied the bequests contained in the Will of the Testator, t u

the benefit of the drawer, and executed at a time when the Testator was sup-

posed to be dying, in the absence of proof of the knowledge, by the Testator,

of its contents, pronounced against.

Proof of the actual reading over of the instrument to the Testator, before execu-

tion, is not necessary [6 Moo. P.C. 160-1511.

This was an appeal from a Decree of the Prerogative Court of Canterbury, made

in a cause of proving the last Will and Testament of William Mitchell, late of Com-

prigney, near Truro, in the County of Cornwall, bearing date the 9th of December,

1844, and-a first Codicil thereto bearing date the 19th of January, 1845, and of

proving in solemn form of law a second Codicil to the Will, bearing date the 22nd

of January, 1845, whereby the Court pronounced against the force and validity of

the second Codicil. The suit was promoted by the Appellant, William Mitchell, soil

of the Testator by his first wife, the sole executor [I381 named in the Will, against

the Respondent, Eliabeth Thomas, wife of Richard Thomas, the daughter of the

Testator, by his second wife, a legatee named in the Will.

The Testator, by his Will, devised and bequeathed certain freehold and lease-

hold property, to his wife, (which had formerly belonged to her father and mother,)

with a legacy of 2500, and an annuity of 2100: he also bequeathed to her his

dwelling-house at Coinprigney, with the furniture, linen, and books therein, f o r

life, and at her death or second marriage he devised the dwelling-house to the Re-

spondent, for her life, and at her death to her eldest son, in fee; and i f no son, to

her daughter or daughters, if more than one, as tenants in common; and if no

child, then t o the Appellant, in fee; and he also bequeathed to the Respondent, for

her separate use, the household furniture, after his wife’s death; with a legacy of

33500, and one third part of ten one hundred and twenty-eighth parts or shares,

and two-fifths of a share in the East Wheal Rose Mine; he also bequeathed to his

* Present : Lord Brougham, Lord Langdale, Lord Campbell, the Right Hon.

Dr. Lushing-ton, and the Right Hon. T. Pemberton Leigh.

636